Rule 3-7.7 - PROCEDURES BEFORE SUPREME COURT OF FLORIDAAll referee reports and all judgments entered in proceedings under these rules are subject to review by the Supreme Court of Florida in the following manner.
(a) Right of Review.(1) Any party to a proceeding may request review of all or part of a referee's report or judgment entered under these rules.(2) The Supreme Court of Florida reviews all referee reports and judgments recommending probation, public reprimand, suspension, disbarment, or revocation pending disciplinary proceedings.(3) A referee's report that does not recommend probation, public reprimand, suspension, disbarment, or revocation pending disciplinary proceedings is final if not appealed.(b) Appointment of Bar Counsel. The board or staff counsel, if authorized by the board, may appoint new or additional bar counsel to represent The Florida Bar on any review.(c) Procedure for Review. The Supreme Court of Florida will conduct its review using the following procedures.(1)Notice of Intent to Seek Review of Report of Referee. A party to a bar disciplinary proceeding must file notice of intent to seek review of a referee's report, specifying any portion of the referee's report to be reviewed, within 60 days of the date on which the referee's report is docketed by the Clerk of the Supreme Court of Florida in an electronic format approved by the Supreme Court of Florida. The Florida Bar will provide prompt written notice of the board's action, if any, to the respondent. The opposing party may file a cross-notice for review specifying any additional portion of the referee's report for which that party seeks review within 20 days after service of the notice. The filing of the notice or cross-notice to seek review is jurisdictional, and the party who fails to timely file notice loses supreme court review as a right. The court may, in its discretion, consider a late-filed notice or cross-notice on a showing of good cause.(2)Record on Review. The report and record filed by the referee constitute the record on review. If hearings were held at which testimony was heard, but no transcripts were filed in the matter, the party seeking review must order preparation of all transcripts, file the transcripts with the court, and serve copies on the opposing party on or before the time of filing of the initial brief, as provided elsewhere in this rule. The party seeking review must pay the court reporter cost of transcript preparation. Failure to timely file and serve all transcripts may be cause to dismiss the party's petition for review.(3)Briefs. The party first seeking review must file a brief in support of the notice of intent to seek review within 30 days of the filing of the notice. The opposing party must file an answer brief within 20 days after the service of the initial brief of the party seeking review, which must also support any cross-notice for review. The party originally seeking review may file a reply brief within 20 days after the service of the answer brief. The cross-reply brief, if any, must be served within 20 days of the reply brief's filing. Computation of time for filing briefs under this rule shall follows the applicable Florida Rules of Appellate Procedure. The form, length, binding, type, and margin requirements of briefs filed under this rule follow the requirements of Fla. R. App. P. 9.210.(4)Oral Argument. Request for oral argument may be filed in any case a party files a notice of intent to seek review at the time of filing the first brief. If no request is filed, the case will be disposed of without oral argument, unless the court orders otherwise.(5)Burden. On review, the burden is on the party seeking review to demonstrate that all or part of the referee report is erroneous, unlawful, or unjustified.(6)Judgment of Supreme Court of Florida. (A) Authority. The Supreme Court of Florida will enter an appropriate order or judgment after review. If no review is sought of a referee's report entered under the rules and filed in the court, the findings of fact are deemed conclusive, and the referee's recommended disciplinary measure will be the disciplinary measure imposed by the court, unless the court directs the parties to submit briefs or conduct oral argument on the suitability of the referee's recommended disciplinary measure. A referee's report that becomes final when no review has been timely filed will be reported in an order of the Supreme Court of Florida.(B) Form. The court's judgment may include judgment in favor of any:(i) party to whom costs are awarded;(ii) person(s) to whom restitution is ordered; or(iii) person(s) to whom a fee is ordered to be forfeited.(7)Procedures on Motions to Tax Costs. The court may consider a motion to assess costs if the motion is filed within 10 days of the entry of the court's order or opinion where the referee finds the respondent not guilty at trial and the court, on review, finds the respondent guilty of at least 1 rule violation and does not remand the case to the referee for further proceedings or where the respondent was found guilty at trial and the court, on review, finds the respondent not guilty of any rule violation. The party from whom costs are sought has 10 days from the date the motion was filed in which to serve an objection. Failure to timely file a petition for costs or timely serve an objection, without good cause, waives the request or objection to the costs, and the court may enter an order without further proceedings. If an objection is timely filed, or the court otherwise directs, the court will remand the motion to the referee. On remand, the referee must file a supplemental report that includes a statement of costs incurred and the manner in which the costs should be assessed. Any party may seek review of the supplemental report of referee in the same manner as provided for in this rule for other reports of the referee.(d) Precedence of Proceedings. Notices of intent to seek review in disciplinary proceedings take precedence over all other civil causes in the Supreme Court of Florida.(e) Extraordinary Writs. All applications for extraordinary writs that are concerned with disciplinary proceedings under these rules of discipline must be made to the Supreme Court of Florida.(f) Florida Rules of Appellate Procedure. The Florida Rules of Appellate Procedure are applicable to notices of intent to seek review in disciplinary proceedings if consistent with this rule. Service on bar counsel and staff counsel constitutes service on The Florida Bar.(g) Contempt by Respondent. A petition for an order to show cause why the respondent should not be held in contempt in a disciplinary proceeding and the proceedings on the petition may be filed in and determined by the court or as provided under rule 3-7.11(f).(h) Pending Disciplinary Cases. If the court orders disbarment, that order may include the dismissal without prejudice of other pending disciplinary cases against the respondent. If the revocation is granted by the court, the revocation dismisses all pending disciplinary cases against that respondent.Former Rule 3-7.6 renumbered as Rule 3-7.7 March 16, 1990, effective 3/17/1990 558 So.2d 1008. Amended July 23, 1992, effective 1/1/1993 605 So.2d 252; 9/24/1998, effective 10/1/1998 718 So.2d 1179; 4/25/2002 820 So.2d 210; 11/19/2009, effective 2/1/2010, SC08-1890, 34 Fla.L.Weekly S628a. Amended April 12, 2012, effective 7/1/2012 101 So.3d 807; amended March 3, 2022, effective 5/2/2022 SC20-1467; amended September 7, 2023; effective 11/6/2023 SC22-1293.Comment
Subdivision (c)(7) of this rule applies to situations that arise when a referee finds a respondent not guilty but the court, on review, finds the respondent guilty and does not remand the case to the referee for further proceedings. See, e.g., The Florida Bar v. Pape, 918 So. 2d 240 (Fla. 2005). A similar situation may also occur where a respondent is found guilty at trial, but not guilty by the court on review of the referee's report and recommendation.